Maternity Benefit Act, 1961

Maternity benefits at the workplace are necessary to ensure job security, protect women’s economic rights and support their maternal duties. In India, the Maternity Benefit Act 1961 provides maternity benefits in the form of maternity leave for all women employees.

Maternity leave is a paid leave provided to expecting or pregnant women who can utilise it before and after the delivery of the child. All employers or organisations in India must give maternity leave to pregnant women. It is vital to ensure the overall well-being of the newborn child and mother.

The Maternity Benefit Act, 1961 which follows the model of the International Labor Organization, seeks to provide maternity protection to women in order to promote this goal. The Maternity Benefit Act, of 1961, and its most recent amendment from 2017 ensure that women can actively participate in the workforce after giving birth. The increasing transformation of society makes it necessary for women to avoid becoming exposed during the precarious stage of pregnancy. In order to prevent this from having an influence on women, their productivity, or economic growth, the Maternity Benefit Act guarantees that a woman has equal protection to employment during pregnancy. In this article, we look into Maternity Benefits available to a woman in India as per the Maternity Benefit Act, of 1961.

Maternity Benefit Act 1961

In India, maternity leave and benefits are regulated under the Maternity Benefit Act 1961 (‘Act’). The Act provides comprehensive maternity benefits, including medical bonuses, paid leave and nursing breaks. The Act supports women during the birth of their child. It protects and safeguards the livelihood and interests of female employees and gives them time to nurture their newborns while taking care of themselves.

As per the Act, women working at recognised organisations and factories can take maternity leave for up to 6 months. Women employees can take maternity leave before and after they deliver the child for up to 6 months. During this leave period, the employer must pay the women employee her entire salary.

Scope and Importance of Maternity Benefit Act, 1961

The Act’s primary goal is to eliminate the obstacles that women face when they embark on the parenthood journey. The fundamental goal of the Act is to make it possible for women to balance employment and motherhood without having to make concessions. By the end of the 19th century, Germany had established maternity benefits, setting the standard for the rest of the world. The Maternity Protection Convention was developed by the International Labor Organization in accordance with the notion. In the Indian context, N.M. Joshi proposed the Maternity Benefit Bill (No. 31 of 1924) in the Central Legislature in 1929 after seeing the need for maternity benefit legislation.

Prior to this, in the 1920s, the Women’s Association of India waged a campaign to obtain maternity rights in the Jamshedpur steel sector. Following that, the Central Government made an effort by passing the Mines Maternity Benefit Act, of 1941, the Employees’ State Insurance Act, of 1948, and the Plantations Labor Act, of 1951. These acts eventually made room for the Maternity Benefit Act, of 1961, which was passed by the Parliament with the sole purpose of regulating the employment of women for a specific period before and after childbirth. The ambiguities regarding the various maternity leave periods and the minimum term of service required to be eligible for maternity benefits were the driving forces for the codification.

By providing a woman with complete and healthy maintenance when she is not working, we are able to further the larger goal of safeguarding the dignity associated with motherhood.

Maternity Benefit Act, 1961: Amendment 2017

The 2017 Amendment was enacted in response to the 259th Law Commission Report, which stated:

“The Maternity Benefit Act is revised in conformity with the forward-looking requirements in the CCS Rules, increasing maternity benefits from twelve weeks to 180 days.” Maternity benefits should be made mandatory by the state rather than left to the discretion of employers, and they should apply to all women, even those working in the unorganized sector. It is advised that the government develop policies or guidelines outlining minimum requirements for paid maternity leave for women working in the private sector.”

Mr. Bandar Dattatreya, Minister for Labor and Employment, tabled the Amendment Bill in the Rajya Sabha. The Bill was proposed after the 44th Session of the Indian Labor Conference (ILC) advocated increasing the length of maternity leave, which was reaffirmed in the 45th and 46th Sessions. This was in addition to the recommendations by the Ministry of Women and Child Development to expand the scope of maternity benefits for women. According to World Health Organization recommendations, there was a need to extend Maternity Leave to preserve the health of both the mother and the child, especially since a kid needed to be nursed for the first 24 months to boost survival rates.

Analysis of important Sections incorporated in Maternity Benefit Act, 1961

Maternity Leave Duration [Section 5(3)]
According to the Act, every woman is entitled to a 12-week maternity benefit. The Act aims to raise this to 26 weeks. Furthermore, under previous laws, a woman may not use the benefit before 6 weeks from the projected delivery date. The Amendment reduces this to an 8-week timeframe. In the case of a woman who has two or more children, the maternity benefit will remain at 12 weeks, which cannot be used six weeks from the projected delivery date.
Adoptive and Commissioning Mothers’ Maternity Leave [Section 5(4)]
The Amendment also gives a woman who lawfully adopts a child under the age of three months, as well as a commissioning mother, who is defined as a biological mother who uses her egg to develop an embryo implanted in another woman, 12 weeks of maternity leave. The 12 weeks of maternity leave will begin when the kid is given over to the adoptive or commissioning mother.
Work from Home Possibility [Section5 (5)]
The Amendment includes an innovative provision that allows women to work from home depending on the nature of the task they are to perform. The task might be decided upon by mutual agreement between the employer and the employee. This option does not expire after delivery and can be continued even after delivery for a term mutually agreed upon by the employer and the woman.
Crèche Services [Section11A-(1)]
The Amendment adds a new requirement requiring creche facilities to be within a certain distance. The mother will be permitted four visits to the creche every day, including rest time.
Informing female employees of their maternity leave rights: [Section11-A (2)]
The clause asks for raising awareness among female employees about the maternity benefits that are accessible to them during their employment.
Miscarriage Leave [Section 9]
Following a miscarriage or medical termination of pregnancy, a woman is entitled to a 6-week maternity benefit upon submission of medical documentation.
Leave with pay for tubectomy surgery [Section 9-A]
After submitting the required medical documentation, a lady will be entitled to two weeks of maternity leave immediately following the procedure.
Informing female employees of their maternity leave rights [Section11-A (2)]
The clause asks for raising awareness among female employees about the maternity benefits that are accessible to them during their employment.
Dismissal while absence or pregnancy is prohibited [Section 12]
It is illegal to fire or terminate a female employee who is not present at work in compliance with the terms of this Act. If the employer dismisses or discharges the employee, he is required by law to give her maternity benefits or bonuses. If this is not followed, the injured woman may file an official complaint.
Inspectors’ appointment [Section 14]
The government has designated Inspectors to administer and execute the Act. These Inspectors must be Public Servants, as specified in Section 21 of the Indian Penal Code, according to Section 16.
Inspector’s authority to order payment [Section 17]
An Inspector may conduct an investigation on his own or in response to a complaint filed by an employee who is dissatisfied. If the allegation is determined to be true after inquiry, the Inspector may order the employer to reimburse the employee. If the employee is dissatisfied with the Inspector’s judgment, he or she may file an appeal with the appropriate authorities.
Penalty for employer’s violation of the Act [Section 21]
If the employer fails to pay the sum, he will be penalized in line with the Act’s requirements. There shall be imprisoned for not less than three months and up to one year, as well as a fine of not less than Rs.2000, which may be increased to Rs.5000. The aforementioned measures demonstrate the legislature’s progressive approach to women’s rights and the necessity to give women with enough opportunity and room for growth, which they were previously denied. By passing this amendment, the legislature has committed to the spirit of a welfare state.

What is maternity leave?

Maternity leave is the paid leave provided to pregnant women working in any organisation. The Act provides the period of leave that an employer or organisation must give to pregnant women before and after the delivery of their child, which is as follows:

All pregnant women are eligible for 26 weeks of maternity leave for the first and second child, out of which they can take a maximum of 8 weeks’ leave before their expected delivery date.
For the third and subsequent child, mothers are eligible for 12 weeks of maternity leave.
A woman can take 6 weeks maternity leave in the case of miscarriage or medical termination of pregnancy. However, she may have to produce proof of miscarriage, and the leave period starts immediately following the miscarriage date.
Adopting or commissioning mothers can take up to 12 weeks of maternity leave starting from the day the newborn child is handed over to the mother.

Additional leaves can be granted for new mothers requiring more recovery time. Employers can be punished with imprisonment if they contravene the provisions of the Act and do not provide maternity benefits for the mother.

Maternity Benefits available to a woman in India

Maternity Benefits are benefits granted by a company to pregnant female employees before and after childbirth for a set period of time. Maternity Benefit is now accessible in India under The Code on Social Security, 2020; previously, it was given under The Maternity Benefit Act, 1961. Every woman is entitled to maternity benefits at the rate of the average daily income for the time immediately preceding her delivery and any period immediately after that day.

The following are the Maternity Benefits available to a woman in India:

Average Daily Wage
Average Daily Wage refers to the average wage for the three months preceding the date of her absence due to maternity.
Prerequisite for Maternity Benefit
The woman must have worked for at least 80 days in the 12 months before the date of her expected birth in an enterprise from which she is claiming maternity benefit in order to be eligible for it.
Maximum Maternity Benefit Period
The maximum duration for which maternity benefits are eligible is 26 weeks, with 8 weeks preceding the projected date of her delivery and the remaining 18 weeks following the date of her delivery. The maximum length for which a woman with two or more surviving children may get maternity benefits is 12 weeks, of which 6 weeks must precede the date of her projected birth and the remaining 6 weeks must follow the date of her delivery. When a woman dies while giving birth, the maternity benefit is only accessible for the days leading up to and including the day of her death.
When a woman who has given birth dies after the date of her delivery, her employer is responsible for the maternity benefit for the whole time for which she was eligible. If the child dies after birth, the employer is liable for maternity benefits for the days leading up to and including the date of the child’s death.
Maternity Benefit Payment to Nominated Person/Legal Representative
Payment of maternity benefits in the event of a woman’s death shall be provided to the person selected by the woman, and if no nomination has been made by the woman, it shall be made to her legal representative.
Adopting Mother
When a woman adopts a child under the age of three months, she is eligible for maternity benefits for a maximum of 12 weeks from the day the infant is given to the adoptive mother.
Medical Benefit
A woman who is eligible for maternity leave is also eligible for a medical bonus of Rs. 3500/- from her company.
Nursing Break
A mother who returns to work after giving birth is entitled to two breastfeeding breaks until her kid reaches the age of 15 months.
Childcare Services
A woman at an establishment with 50 or more employees is entitled to a creche facility for four visits per day, which includes the rest periods permitted to her.
Invocation of Authority
If a woman is denied maternity benefits, she has 60 days from the date of transmission of the deprivation order to submit an appeal to the appropriate body.
Commissioning Mother
A biological mother who utilizes her egg to make an embryo that is placed in another woman is referred to as a commissioning mother. Maternity benefit is offered to the commissioning mother for a maximum of 12 weeks from the moment the child is turned over to her. After giving birth, a woman may work from home under terms agreed upon by the company and the woman.
Inspector-Facilitator Authority
After receiving a complaint from a woman or nominated person/legal representative that he/she has been denied maternity benefit or any other amount which the employer is obligated to pay under this code to the employee, the Inspector-cum-Facilitator may conduct an investigation and, if satisfied, direct the employer to make payment and pass such order as he deems just and proper. An aggrieved individual may file an appeal against the Inspector-cum-order Facilitator within 30 days to the authority authorized by the competent government, and the order granted by the prescribed authority is final.

Maternity leave applicability

The Maternity Benefit Act applies to women working in public and private sector organisations. Thus, it applies to all women employed in private companies, government jobs, mines, plantations, factories and organisations with 10 or more employees. However, the Maternity Benefit Act does not apply to women working in organisations with less than 10 employees and self-employed women.

Maternity leave rules

he maternity leave policy and rules in India provide for the following:

Employers must pay full salary to the woman employee during her maternity leave period. This salary rate is calculated according to her actual salary or daily wages in the 3 months prior to her maternity leave request.
Employers should not employ a woman during the 6 weeks immediately following her delivery or miscarriage.
Employers must provide childcare provisions and restore the woman to her previous position in the organisation upon her return from the maternity leave period.
Pregnant employees are entitled to the following workplace amenities:
- Hygienic restrooms
- Comfortable working and seating arrangements
- Safe drinking water
Employers must not give pregnant women difficult tasks or long working hours 10 weeks before the expected delivery date to ensure the safety and health of the mother and child.
Employers can grant additional leaves to mothers if they cannot return to work after the maternity leave period through a mutual agreement.
Employers can also grant work-from-home options to mothers through a mutual agreement between the employer and the mother.

FAQs

Q: Who is eligible for Maternity Benefit Act 1961?

All pregnant women, women adopting a child under three months, and commissioning mothers working in a company, factory or establishment are eligible under the Maternity Benefit Act 1961 to get maternity benefits.

Q: How many months is maternity leave?

The maternity leave for first and second-time mothers is 6 months, and for the delivery of third and subsequent children is 3 months. The maternity leave for adopting children below 3 months and commissioning mothers is 3 months. In the case of miscarriage or medical termination of pregnancy, a woman can take maternity leave for 1 and a half months.

Q: How to apply for maternity leave?

An expecting mother can take maternity leave by writing a notice to the employer or applying for maternity leave on the company portal.

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